EXPLANATORY STATEMENT
CUSTOMS ACT 1901
CUSTOMS (PROHIBITED EXPORTS) REGULATIONS (AMENDMENT)
STATUTORY RULES 1989 NO. 196
ISSUED BY THE AUTHORITY OF THE MINISTER OF STATE FOR SCIENCE, CUSTOMS AND SMALL BUSINESS
Section 112 of the Customs Act 1901 provides in part that “(1) The Governor-General may, by regulation, prohibit the exportation of goods from Australia. (2) The power conferred by sub-section (1) may, be exercised - … (c) by prohibiting the exportation of goods unless specified conditions or restrictions are complied with.”
These Statutory Rules give effect to the Government’s decision to amend regulation 13B and Schedule 13 to the Customs (Prohibited Exports) Regulations, and insert new provisions which are designed to restrict the class of goods subject to defence export control to only those goods which are: i) designed or adapted for military purposes and inherently lethal, incapacitating or destructive; ii) other military or related goods of major military significance; and iii) cryptographic and related electronic equipment and software, both military and commercial. In addition, the Government agreed to control the exportation of potentially lethal “non-military” goods via a licensing mechanism for exporters of such goods.
Further, as a result of the above amendments, consequential amendments to the Customs (Prohibited Exports) Regulations have been made, as follows: a) regulation 4, which controlled the exportation of ships, and regulation 7, which controlled the exportation of aircraft, have been repealed, on the ground that a blanket control over such items is no longer necessary. Rather, only ships and aircraft designed or adapted for military purposes or of major military significance (new Regulation 13B) or ships and aircraft of heritage value (which are protected under the Protection of Movable Cultural Heritage Legislation) are now to be subject to export control. In addition, several items have been added to Schedule 14, which controls the exportation of goods to South Africa and Namibia, on the ground that those items are no longer to be generally controlled to destinations other than those two countries.
Details of the Statutory Rules are as follows:
Regulation 1 is a machinery provision which makes 25 July 1989 the date these Statutory Rules come into operation.
Regulation 2 is a machinery provision which defines the term “Principal Regulations” to mean the Customs (Prohibited Exports) Regulations wherever this appears in these Statutory Rules.
Regulation 3 repeals regulation 4 of the Customs (Prohibited Exports) Regulations which controls the exportation of ships. This repeal is in accordance with the undertaking given by the Minister for Science, Customs and Small Business on 20 October 1988 to the Senate Standing Committee on Regulations and Ordinances that it was the Government’s intention to restrict the export control on ships to only those ships designed or adapted for military purposes, or of major military significance.
• The revised Schedule 13 controls certain ships by virtue of Item 13 of Part IA and Item 4 of Part IB.
In addition, ships of heritage value continue to be controlled under the Protection of Movable Cultural Heritage legislation.
Regulation 4 repeals regulation 7 of the Customs (Prohibited Exports) Regulations which controls the exportation of aircraft. This acquits the undertaking given by the Minister for Science, Customs and Small Business to the Senate Standing Committee on Regulations and Ordinances that either review rights would be included in this Regulation, or the blanket control would be repealed if it was no longer necessary. As aircraft designed or adapted for military purposes and aircraft of major military significance are now controlled under Item 13 of Part IA and Item 4 of Part IB of the new Schedule 13, and aircraft of heritage value are controlled under the Protection of Movable Cultural Heritage legislation, the Government decided no further export controls over aircraft were necessary, and hence the repeal of Regulation 7.
Regulation 5 replaces the previous control regime for defence related goods under regulation 13B with a new regime, details of which are as follows:
• Subregulation 13B(1) is amended to take account of the fact that licences may now be granted in respect of goods controlled under Part III of Schedule 13.
• New subregulation 13B(2) provides that the exportation of goods specified in, or included in a class of goods specified in Part IA, IB and II of Schedule 13 is prohibited unless a permission in writing to export those goods has been granted by the Minister for Defence or an authorized person, and that permission is produced to a Collector of Customs.
• Similarly, new subregulation 13B(3) provides that the exportation of goods specified in, or included in a class of goods specified in Part III of Schedule 13 is prohibited unless the person exporting the goods is the holder of a licence or permission to export those goods (granted by the Minister for Defence or an authorized person), and that licence or permission is produced to a Collector of Customs.
• New subregulation 13B(4) provides that permissions or licences granted under regulation 13B may be subject to conditions or requirements.
• New subregulation 13B(5) provides the Minister for Defence with the power to revoke a permission or licence granted under regulation 13B where the holder of the permission or licence has failed to comply with a condition or requirement of the permission or licence.
• New subregulation 13B(6) provides that all licences granted under regulation 13B are to remain in force for a period of 12 months from the day on which the licence commences, or for such other period as is specified in the licence, which may be a period less than or greater than 12 months.
• New subregulation 13B(7) defines the term “software” for the purposes of its use in the new Schedule 13.
Regulation 6 effects a technical drafting change to regulation 13D of the Customs (Prohibited Exports) Regulations by removing the phrase “subject to regulation 13H”. Permissions and licences granted under regulations 13B, 13D and 13E by authorized persons are all granted subject to regulation 13H (which provides that where an authorized person is of the opinion that a permission or licence, as the case requires, should not be granted, the final decision on such an application must be referred to the relevant Minister) and this practice will continue. However, as a matter of drafting, it is not necessary to expressly state this in regulations 13B, 13D and 13E; rather, it is sufficient to have the position stated in regulation 13H only.
Regulation 7 amends regulation 13E of the Customs (Prohibited Exports) Regulations, similar to Regulation 6, by removing the phrase “subject to regulation 13H” wherever it occurs. For the reasons outlined in regulation 6 above it is not current drafting practice to state this in each regulation.
Regulation 8 effects a consequential drafting amendment to regulation 13H of the Customs (Prohibited Exports) Regulations, by adding the new defence export Regulation 13B to the control in Regulation 13H.
Regulation 9 repeals the existing Schedule 13 and substitutes a new Schedule of the controlled defence goods, which is divided into Parts. Part IA deals with goods which are designed or adapted for military purposes and are inherently lethal, incapacitating or destructive; Part IB deals with other military or related goods; Part II deals with cryptographic and related electronic equipment and software, both military and commercial; and Part III deals with non-military lethal goods.
• The new control regime proposed for goods specified in, or included in a class of goods specified in the first 3 parts, involves the prohibition of the exportation of such goods unless a “case by case” permission is first obtained for the exportation (new subregulation 13B(2) refers).
• The new control regime proposed for goods specified in, or included in a class of goods specified in the last part involves the prohibition of the exportation of such goods unless either a case by case permission is first obtained, or the exporter holds a licence to export such goods (new subregulation 13B(3) refers).
Regulation 10 amends Schedule 14 to the Customs (Prohibited Exports) Regulations by inserting 4 additional items. These items were previously controlled in Schedule 13, but are omitted from the revised Schedule 13. As it is still desired to control the exportation of these goods to South Africa and Namibia, it is necessary to include them in Schedule 14 itself, which specifically controls the exportation of goods to South Africa and Namibia.
Regulation 11 is a standard savings provision which allows permissions granted under regulation 13B prior to the commencement of these Statutory Rules to remain valid under the new regime. However, the maximum time an existing permission can remain valid for is 6 months, ie. until 25 January 1989. After that time new permissions or licences will be required for the exportation of goods controlled under the new Schedule 13.
(S.R. 220/89)